Wratt v Harnett HC Auckland M No 404/1706/SD00

[2001] NZHC 498

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY MNO 404/1706/SD00

BETWEEN GRAHAM COLYN WRATT
Plaintiff

AND IAN KEITH HARNETT
First Defendant

AND PAUL JOHN SMITH
Second Defendant

AND DAVID JOHN SHAW
Third Defendant

AND TERENCE WILLIAM GARDINER and JOSEPHINE CLARE WHALE
Fourth Defendants

AND VICKI ROBYN STOREY
Fifth Defendant

AND BRIAN NELSON HARTMAN, BARBARA PHYLISS HARTMAN and NIGEL STEPHEN HARTMAN
Sixth Defendants

Hearing: 12 June 2001

Counsel: D J G Cox for Plaintiff
First Defendant in Person

Judgment: 12 June 2001

ORAL JUDGMENT OF RODNEY HANSEN J

[1] This is an application to vary the terms of an interim injunction granted by Glazebrook J on 13 December 2000. She made orders requiring the first defendant, Professor Harnett, to provide vehicular access to the plaintiff over his property on Great Barrier Island. Subsequently, differences arose as to the precise route over which access was to take place in terms of the Court order. The plaintiff, Mr Wratt, had assumed the access route was one he had used in the past, whereas Professor Harnett says that he intended that the route should take Mr Wratt through a neighbouring property.

[2] As a result of these differences, an application was made by Mr Wratt for a writ of arrest against Professor Harnett for his failure to comply with the interim injunction. That was heard by Hammond J on 5 April 2001. He was unable to find to the required standard of proof beyond reasonable doubt that Professor Harnett knew that he was in breach of the terms of the interim injunction. He dismissed the application but directed that Mr Wratt apply for a variation to the terms of the injunction to remove the confusion which had arisen in relation to the December order.

Background facts

[3] The background to the dispute between the parties is canvassed in some detail in the judgments of Glazebrook and Hammond JJ. I will confine myself to a brief review of the history.

[4] Professor Harnett purchased his land on Great Barrier Island in about 1982. Mr Wratt and his former partner owned an adjacent property. It appears that for some years earlier access to that property had been gained over the land purchased by Professor Harnett with the agreement of the previous owners. In or about 1983, Professor Harnett agreed with Mr Wratt and his partner that they could access their property through tracks over his property.

[5] From about 1984-1994 the route by which Mr Wratt accessed his property over Professor Harnett’s property was by way of a track known as the central track, from which was cut another track known as the link track which permitted access towards the north eastern boundary of the Harnett property, close to where the point at which Mr Wratt’s property came closest to the Harnett property. There is a property now owned by a Mr Shaw which separates the two properties. Access over that land has also been required in order to complete ingress and egress from Blackwell Drive where the track over Professor Harnett’s land commences.

[6] There is another track running through Professor Harnett’s land blown as the boundary track. That also permits access to the north eastern corner of the property where it intersects with the link track which, as previously noted, veers off the central track. Hence the link track is properly descriptive of a track which links the central track with the boundary track. From 1994 until 2000, at the request of Professor Harnett, Mr Wratt gained access to his property by way of the boundary track. As I understand it, that track was constructed in about 1994 and was regarded as the preferred route by which to traverse the property.

[7] Early in 2000, for reasons which it is unnecessary for me to go into. Professor Harnett gave Mr Wratt nine months notice of his intention to withdraw the permission he had granted for access through his property. As a result, Mr Wratt issued proceedings seeking relief under s 129B of the Property Law Act 1952 and applied for interim relief pending the substantive hearing. That application came before Glazebrook J on 13 December 2000. She ordered that Professor Harnett provide vehicular access for Mr Wratt and his then partner, Mr Dunstan, over the central track until the hearing of the substantive proceeding. She made that order subject to a further ten conditions numbered [ii] to [xi] in the judgment. The full terms of the order were as follows:

“[i] Professor Harnett will provide vehicular access for Mr Wratt and his partner Mr Dunstan over the central track until the hearing of the substantive matter;

[ii] Professor Harnett will provide access to guests of Mr Wratt across the central track but any such guests must come on foot and shall not use vehicles;

[iii] Mr Hartman cannot use the track or come on to Professor Harnett’s property for any reason and, for the avoidance of doubt, does not come under [ii] above;

[iv] Gates on the central track (and the boundary track for the access provided for in [x]) must be locked and unlocked after each one-way passage;

[v] Access is only for access to and from Mr Wratt’s property from Blackwell Drive and there is no access to the remainder of Professor Harnett’s property;

[vi] The central track is not to be used for commercial purposes;

[vii] Professor Harnett shall be held immune from legal liability for accidents occurring as a result of access being taken over Professor Harnett’s land either over the central track or the boundary track;

[viii] There will be a payment of $25.00 per vehicle that is to use the central track by Mr Wratt to Professor Harnett to be paid within 30 days from the date of this order;

[ix] Any damage caused to the central track by driving in wet weather is to be repaired by Mr Wratt;

[x] Access is to be given by Professor Harnett over the boundary track for one week at a time that is to be agreed between the parties, for the purpose of transportation of Mr Wratt’s equipment from his garage;

[xi] Mr Wratt is to be provided with a pipe. He will then provide the labour to fill in the culvert on the boundary track. Timing is to be agreed between the parties.”

[8] From the grant of the injunction until 10 February 2001, Mr Wratt used the central track and the link track to traverse Professor Harnett’s property. He therefore ceased using the boundary track and reverted to the route that he had followed between 1984 and 1994. At about that time Professor Harnett returned to New Zealand from his usual place of residence in Japan and took steps which had the effect of preventing Mr Wratt from using the link track and the north eastern end of the boundary track to gain access to his property. He carried out earthworks on that north eastern section of the boundary track after the point at which it intersects with the central track and planted it in mature trees.

[9] Professor Harnett said he took these steps pursuant to plans which he had made some years earlier to revegetate that part of his land. He did so also, he says, because it was his understanding that the terms of the injunction granted by Glazebrook J did not include the use of the link track and the north eastern section of the boundary track, but were intended to cover a further section of the central track which proceeded from the point at which the link track veered off it. That section of the track terminates at the adjoining property of a Mr Paul Smith. In order to access his property by that route, Mr Wratt is required to negotiate a track which passes through the Smith property and which has been referred to for convenience as “the Smith track”. That track ends up linking the central track with the far north eastern portion of the boundary track and thence permits access to Mr Wratt’s property through Mr Shaw’s property.

[10] Professor Harnett says that it was always his understanding that the reference in Glazebrook J’s judgment to the central track was to the central track which advanced to the Smith boundary and that it was never his intention to agree to access by way of the link track and the north eastern portion of the boundary track.

[11] Mr Wratt has deposed that the Smith track is an unsatisfactory means of access. It is steep in parts and, according to him dangerous, particularly in wet weather. He refers to an incident in which his partner only narrowly avoided serious injury while attempting to traverse that track. As a result of the perceived risks of using the Smith track to gain access and of the effective blocking of the north eastern portion of the boundary track by the planting carried out by Professor Harnett, Mr Wratt entered onto Professor Harnett’s land and cut a new track which would permit him access towards the boundary of the Shaw property from the point at which the link track and the boundary track intersected. He deposed that this track was cut with only minimal damage to vegetation, requiring only the removal of some manuka. He acknowledges, however, that he took this action without reference to Professor Harnett.

[12] Mr Wratt’s application for a writ of arrest followed. Hammond J found, after reviewing the relevant evidence, that there was “a very distinct suspicion” that Professor Harnett had chosen to reconfigure the central track for his own purposes after the December 2000 decision but was unable to conclude to the standard required by law, that he knew that the December 2000 order permitted Mr Wratt to traverse the link track and the north eastern portion of the boundary track.

Application to vary injunction

[13] On behalf of Mr Wratt it was submitted that Professor Harnett could not reasonably argue that the terms of the injunction refer to anything other than the means of access which had been used by Mr Wratt over the 1984-1994 period. He referred to the fact that Mr Wratt had never been required to use the route which Professor Harnett now claims to have been intended by the injunction. He pointed out that Mr Wratt had never been provided with keys to a gate at the Smith boundary end of the central track which he says would have been the case if it had been intended that that section of the central track should be used.

[14] Mr Cox pointed out that on 14 February 2001 Professor Harnett’s solicitors were put on notice of the misunderstanding in relation to the terms of the interim injunction. It was made clear in that letter that Mr Wratt believed the injunction to permit use of the link track. Notwithstanding that advice, Professor Harnett carried out earthworks which involved the effective destruction of the north eastern part of the boundary track and the replanting with large native trees earlier referred to. He said that Mr Wratt was given no real option but to cut the new track, given the dangers posed by the track through Mr Smith’s property.

[15] Mr Cox submitted that the balance of convenience favoured amending the injunction to make it clear that the plaintiff could use the central track, the link track and the new track that he had cut. He reminded me of the physical disabilities which had influenced Glazebrook J to grant the injunction in the first place. He relied on the fact that Mr Wratt had enjoyed a right of access over the property for the best part of twenty years. He said that unless a variation is granted, Mr Wratt will be unable to carry the essentials of life to his property or would face the hazards of using the Smith track

Opposition to application

[16] Professor Harnett advanced his case with restraint and responsibility. He referred me to evidence which he submitted made it clear that the reference to the central track in the order of Glazebrook J should have been understood and was intended by him to be understood as referring to the full length of the central track terminating at the boundary of his property with that of Mr Smith. He said that the link track had been illegally formed by Mr Wratt in 1984 and upgraded without his knowledge in 1996. He disputed Mr Wratt’s claim that the Smith track was dangerous. He said that it was no more hazardous than the link track. He expressed concern about the use of any track over his property in wet conditions.

[17] Professor Harnett also maintained that access to Mr Wratt’s property was available through an unformed paper road known as Station Rock Road which forms the boundary of Mr Wratt’s property at its furthest point away from the Harnett property. He referred to the fact that visitors to Mr Wratt’s property had for many years used that means of access. He submitted expert reports which he relied on as demonstrating that vehicular access by that route could be established to within a point six or seven hundred metres from Mr Wratt’s property and that pedestrian access from that point could be achieved without difficulty. He acknowledged, however, that it would not be realistic to expect this route to be used to transport fuel and bulky supplies to the Wratt property.

[18] Professor Harnett also expressed concern at the flagrant flouting by Mr Wratt of the provisions of the Resource Management Act in cutting the new track without obtaining the necessary consent. He also said that there had been persistent breaches by Mr Wratt of the terms of the order of Glazebrook J. In particular, guests to the Wratt property had come by vehicle and not on foot as specified in condition [ii], the gates had been left unlocked from time to time in contravention of condition [iv], and damage to the track had not been repaired as required by condition [ix]. He also complained that Mr Hartman had used the track in defiance of condition [iii], although he accepted that Mr Wratt’s ability to control the movements of Mr Hartman was necessarily limited.

[19] Both parties have filed voluminous affidavits in support of and in opposition to the present application as well as in relation to the other interlocutory applications which have been considered by the Court. It has been possible in the time available only to summarise the key contentions of each side and the evidence relied on in support of those contentions.

Decision

[20] As I have made clear to both parties in the course of argument, my task today is necessarily a confined one. It is not open for me to revisit the terms of the injunction granted by Glazebrook J in their entirety. The purpose of today’s hearing is to clarify those terms and to ensure that a workable interim arrangement can be put in place pending the hearing of the substantive proceeding, which must take place at the earliest opportunity. Far too much time has been spent and money expended on interlocutory skirmishes which will not produce the permanent solution which this situation demands.

[21] It seems to me that the case for Mr Wratt having continuing interim access over the property is unanswerable. Indeed, I did not understand Professor Harnett to dispute that as a matter of general principle. His concern was more with the terms on which that access should be granted.

[22] I am not in a position to resolve the competing contentions of the parties as to the respective merits of access via the link track versus access over the Smith property. However, I am unable to ignore the evidence put forward by and on behalf of those who are at risk of injury or worse from traversing these tracks, that the Smith track poses serious danger to users particularly during the winter period. I have also been informed that Mr Smith has withdrawn permission for Mr Wratt to use that track, but in the absence of direct evidence from him of the fact of and the reasons for that action, I place little weight on that evidence.

[23] I am concerned that Mr Wratt chose to take the law into his own hands and cut a new track. Regardless of his perception that there had been a flagrant breach by Professor Harnett of the terms of the injunction, he had no right to take that action. I am also concerned about the evidence that suggests the conditions associated with the injunction have not been fully respected. Mr Wratt must understand that he is being granted an indulgence and that the terms on which that indulgence has been granted must be adhered to in every respect. As a result of the goodwill of Professor Harnett and the previous proprietors of his land, Mr Wratt has now for some twenty years had vehicular and pedestrian access over that land either by way of the central track and link track or the boundary track.

[24] Notwithstanding the factors which Professor Harnett has urged me to consider, I am satisfied that the balance of convenience favours Mr Wratt being permitted to continue to traverse the land and that the route by which he should be permitted to travel is the central track to the point where the link track deviates from it, the link track to the point where it intersects with the boundary track, and the short track newly developed which carries traffic to the boundary of Professor Harnett’s property.

[25] I amend order numbered [i] made by Glazebrook J accordingly. The other conditions of the order remain. I emphasise that any, failure on the part of Mr Wratt to adhere to the conditions of the order could jeopardise the continuation of interim relief.

Further directions

[26] I regard it as imperative that this proceeding progress as expeditiously as possible to a substantive hearing. I note that Priestley J has directed that an evaluation conference take place for the purpose of ensuring that any necessary directions are made.

[27] Professor Harnett, who is intending to continue to represent himself, is out of the country until the beginning of August. He expects to return on or about 1 August and to remain in New Zealand until mid-September. I direct that the evaluation conference be arranged for either 1, 2 or 3 August. The parties should also give consideration to exploring in advance of the evaluation conference arrangements which would permit a hearing of the substantive issue to take place before Professor Harnett leaves New Zealand on 15 September.

[28] Costs in relation to this hearing are reserved.